Good FOIA Gone Bad

When I saw the map of gun owners printed online by a publication owned by The Gannett Company and the public reaction, I thought of my last supervisor. He was a wise man with whom I could discuss any idea without fear of ridicule or repercussion. When the ideas were good, he would fully support their implementation. When the ideas were bad, he would not hesitate to share why he thought so in a way that was not negative or discouraging. And in the end, I found his judgement in almost everything to be spot on. While we never discussed publishing the names and addresses of gun owners, we did talk about doing this for ordinance violators – people who had run down homes, etc. And this was one of those ideas he thought would be bad. He just thought it was going a little too far; people would not tolerate seeing their name and address publicly displayed for something like an ordinance violation. It's one of those examples where you shouldn't do something just because you can. Based on public reaction to the gun map, it appears he made a good call.

Of course, I see this as fallout from the FOIA laws, and it shouldn't surprise anyone that newspapers were the primary lobbyists for those laws. People are quick to defend FOIA because of the need for open and transparent government, and I agree we do need FOIA for those agencies that are not open and transparent. (Although when you do have an open and transparent government, FOIA actually slows down the process and causes more problems than it helps, but that is another story.) The reason FOIA is part of this problem is it does provide for full disclosure of all government information pursuant to the law yet has little language indicating what can be done with that information. And government has a lot of data on citizens, more so than people probably realize. So the map becomes the example of how this can go so very wrong and demonstrates the need to change FOIA laws so people act responsibly with the information they receive. Particularly when it involves personal information about citizens.

Some of the fallout from this has led to someone posting personal information easily found on the Internet about those involved with the printing of the map. The information can be found in an article, Sauce for the goose or, home address and phone number of Journal-News publisher. Of course, much of the information has since been removed by these jounalists because I imagine they do not want public scrutiny of themselves.

While turning the tables on people might help them better understand the repercussions of their actions, it doesn't solve the problem that FOIA laws provide the gateway to personal information with few to no limits on its use. Fortunately a New York State Senator, Greg Ball, has decided to take action. According to a press release on the New York Senate site, he "multi-sponsored Assembly bill 820, legislation which would prohibit the public disclosure of information in an application for a pistol license with exceptions for prosecutors and police conducting an active investigation." While this might help gun owners in that state, I hope that at some point, legislators everywhere realize this could occur with any personal information the government stores. And legislators should discuss and decide if it is better to change laws to restrict the release of personal information regardless of the purpose for which it was collected or to regulate the use of that information.


Plan Holder/Bidder List – To Share or Not to Share

Water Main Installation

We currently have a project out to bid for the installation of about a quarter mile of 10-inch water main. As usual, after we release the notification to bidders, we begin receiving requests from companies asking for a list of bidders or plan holders. Our city's policy is to not release this list until after the bid opening because of the potential of affecting bid prices. For example, a potential bidder could submit a different bid based on who the competition is and how many other companies have picked up plans.

With the relatively new FOIA laws in Illinois, we've had companies trying to claim the information as a FOIA request. However, we have been denying the request under the following exemption stated in this law:

(h) Proposals and bids for any contract, grant, or  agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

We received a request the other day from a company outside of Illinois and sent them our standard denial letter based on this exemption. They ended up sending a letter to the State of Illinois arguing that we should release the information because they want to submit bids as a subcontractor and the information would encourage a more competitive bid. There are several issues with this.

  • First and most importantly, we believe we are exempt from releasing it, although the final decision will now rest with the State.
  • Next, if the State determines we must release the information, this would become a FOIA request for a commercial purpose which the company failed to mention and by failing to do so violated the law. However if the State determines we must release the information and if the company ends up properly requesting the information, we would have 21 days to respond since it is a request for a commercial purpose which means they would receive the information after the bid opening rendering it useless for their purpose.
  • Finally, the project involves no work that would require the type of services they appear to offer. It would be like bidding out a road resurfacing project and a supplier of excavators wanting to get a list of bidders to give them prices on new equipment. There's just no specific pay item for that work. So I am not even sure how giving a heavy equipment sales company a list of bidders for a specific project that has no specialty items helps lower our cost.

The end result is a waste of time for everyone. Where I worked before, I ended up not being able to even send out lists because we offered proposal materials online so we would not have known who downloaded them. And if we continue to have issues with this, we would probably end up choosing to do the same or just not keep a list. But I was wondering how other agencies are handling these requests, if others believe releasing the lists can affect the bids, and if other states require agencies to release the information prior to opening of the bid.


UPDATE: 7/27/2012

We're posting below a comment we recently received for this article. The reason we're tagging it onto the end of the article is that we've set up posts so the ability to comment is turned off after several weeks to prevent spammers from posting on old articles. So the commenter was unable to post it in the normal manner. Because we definitely wanted readers to see valuable comments in the context of the original post, we thought we'd just add it to the end.


Comment from Cassie Dandridge Selleck

I just wanted to respond to the blog post titled "To Share or Not to Share". I am a vendor, specifically for rentals of under bridge access equipment. While I completely understand how time-consuming it would be to field phone calls requesting bidders or plan holders lists, I wanted to just throw our perspective in there. First of all, I have never CALLED for a list. I agree with your blogger that this is asking someone else to do my job. I also get it that some vendors are not this considerate. But as for posting the list of bidders on your web page, I just can't see where this is a negative, despite the concern for price-fixing. Our rates are our rates. They don't change for anyone unless there are extenuating circumstances. Being able to get our rental rates to the estimators bidding the jobs is crucial to getting the best rate possible for all. Anyone who is going to cheat or inflate prices is going to figure out a way to do that, and it is just never a good business plan. We are a small company trying to make it in a big market. If we are going to keep our RATES low, we have to keep our COSTS low. Advertising is expensive, so we use plan holders lists to update our database and contact contractors directly to let them know we exist. If they need us, they contact us and we provide a quote. This is the cheapest, most effective way to do this and it has worked well. None of the issues posted by the blogger have ever been a part of our business strategy. We just want to get the word out to the companies bidding jobs that we are here to provide additional services they need.  When estimators are trying to get these bids in, they are scrambling to get all the information, too. It just makes sense that the public works departments would be trying to help get the best information and best quotes possible by posting who is bidding what jobs. Just a thought.


A Day in the Life of a Civil Engineer – Day 72

Day 72

Government Day

In the morning, several of us participated in the city's government day. For this event, we invite students from the high school to spend the day with us learning more about what we do. We all met at city hall to pick up the students assigned to us and then headed out to take them on a tour of public works facilities. First we went to the wastewater plant where our operator told them about the treatment process. Then we all went to the water plant to see how we treat the drinking water. We also stopped at our public works offices and garage to show them the equipment and check out the GIS department. And finally we toured our generation facility where we have five large engines that run on natural gas and generate up to 30 MW of power. After the tour, we met up with other staff and students from city hall to eat lunch.

Miscellaneous (& still no response from PACE on the bid tab!)

The rest of the day was spent handling a lot of small, miscellaneous issues. Our concrete contractor was in town pouring the last of the sidewalks that were removed to correct trip hazards. I also contacted IDOT to find out some answers to questions about material inspection for a past job. Our consultant putting together the easements for the water main extension revised the incorrect plat and got it back to us. And I tried to call PACE one last time to check on where my bid tab is for that job – they still have not gotten it to me, and I believe they have gone past the legal date for doing so. Rather than immediately contact the attorney general's office, I thought I would call one last time to see why they have not sent me the bid tab. But no one answered the phone so I had to leave a message. If I don't hear from them soon, I will unfortunately have to contact the state to notify them they are delinquent on filling my FOIA request. I just don't understand what the big deal is about releasing a simple bid tab for a project worth over a million dollars.



The Foibles of FOIA

This week I received a request at work for information that has me wondering how US citizens and in particular Illinois citizens would feel about the results of our new FOIA law. This particular FOIA request ended up taking way too much time from other more pressing matters. However based on the new law, we had to immediately address and handle it regardless of what might be considered more important by our city and citizens.

The request was commercial in nature, and while I tried to send what we had related to the request, in the end, I could not send the actual data they wanted because it was exempted under the law. Finally after I had sent the final email in a series of many that stated the denial of the request, I received the form that I had been asking for all along to verify the commercial status of the request. From the form, I discovered this person was in Romania. This is when I realized they had been asking for information we had spent our citizens' money producing for the benefit of our city so that they could launch a website to make money off our data. The citizens of our city paid me to put their needs and concerns aside to instead devote my attention to someone in Romania. And in the end, the Romanian citizen did not receive what they wanted anyway. 

I realize there is the argument that government should be sharing data to help create and sustain jobs. But what I wondered was does this extend to other countries? How do our citizens feel about allowing people in other countries make money off work that has been produced with US tax dollars? And has our economy and country become so globally oriented that this really isn't an issue?




Open Government: A New Type of Reality Show?

There’s been a lot of talk lately about open and transparent government, public data collection and distribution, and freedom of information. People are excited about online tools that allow for sharing of data. And politicians are eagerly answering the cries for open government by passing new FOIA laws and demanding data sets be released online.

But back behind the doors of city hall, those of us working in government are a little more cautious. Even though most support an open and transparent government, many are concerned over the delivery. We see the potential for all this to turn government into a new type of reality show. Mark Drapeau recently posted an exploration of always-on government that hints at this type of situation.

So how can we deliver relevant information to the public while maintaining and maybe improving the dignity of government and its people?

Establish Data as a Governmental Function
One of the first steps is to decide data collection and delivery for public use really should be a function of government. Government traditionally provides public safety and public works and does so under a set of state and federal laws. These same laws regulate what local government can and cannot do. If government is to elevate data to the same level as a utility, this needs to be a public decision supported by legislation. President Obama’s declarations and mandates coupled with a public push for open government should facilitate adoption of this first step at the state and local levels.

Choose the Data Types
Next the public and the government need to collaborate and settle on what types of data should be initially collected for public consumption. There should also be a mechanism for considering and approving the inclusion of additional datasets in the future. Right now, the public is demanding that all the data within the walls of government be released. But they might not really be aware of what is there. So lets look at some of the information held by a typical state or local government:

List of complaints, names and addresses of those complaining, issue about which they filed a complaint

Copies of building permits along with detailed plans of homes (makes it easier anonymous thiefs to case homes)

Names of those delinquent or late on paying water/electric/sewer bills.

Names of those who have submitted a check or credit card payment and had notices of insufficient funds or late payments or credit card denials.

Names of those paying property taxes and date by which their payment is made.

Driver’s license numbers and vehicle license expiration dates with names and whether they were paid on time.

Name and address of all who have permit violations

State income tax returns with names, income, etc.

Traffic accidents with driver and passenger names, insurance companies, etc. (imagine someone using these reports to create a daily accident blog for a community!)

Names on all utility bills, amount of water/sewer/electric used each month

Should government blindly release all of this data to anyone? Some states like Illinois have already decided. In typical non-Gov2.0 fashion, legislators passed a new FOIA law that goes into affect Jan. 1, 2010. It requires government to release just about everything including a lot of the information listed above -even if the request is made anonymously. One exception to note is data that would compromise someone’s safety. But should an “in-the-trenches” employee have to make the decision about which data compromises someone’s safety? Absolutely not. Instead there needs to be clear guidance on what data should be distributed. In Illinois, this guidance could have easily been developed using Gov 2.0 tools with input from the public and government. Instead the reality show for Illinois government begins Jan. 1, 2010.

Develop Data Standards and Formats
So back to our open government plan: after choosing the type of data, the next decision involves the standards by which each dataset is collected and the formats in which it is distributed. Here is an example: government already collects the number of vehicles traveling along a roadway on an average day. How often should this collection take place? Once a year, every day? Should we collect the type of vehicle? It’s color? Should this collection take place on all roads? The point is there is an endless amount of data to collect, and not all of it would be relevant or worth collecting. A standard helps find the most efficient and beneficial method. And a standard ensures someone can compare data across all agencies.

Carry These Standards Across All Agencies
A national standard would help create meaningful sharing and comparisons, and the federal government is best poised to develop this standard. There are signs that federal agencies are working in this direction and taking a more considered and thoughtful approach than what was done in Illinois. But at this time, federal agencies are more focused on delivery of their own information. There needs to be an initiative by state and local governments, with guidance by the federal government, to bring this open government plan down to our level.

Find a Way to Pay for Data Collection & Delivery!
Finally, we need to find a way to pay for all this. Because just handling one FOIA request could take several full-time staff members working for weeks depending on the amount of information involved. Unfortunately some citizens have the misconception that this cost is minimal. Here is an exchange of comments from a recent online news article reporting on Illinois’ new FOIA law:

neogenesis said: “You people have no idea of the amount of work it takes to respond to just one FOIA request…….. ”

BobJudd/Chatham said:
“We people don’t care…Just do it..
People get paid to hide the records ? Just reverse the process..”

As someone working in government I understood what neogenesis meant: filling one request can shut down your whole department taking up tax dollars that could be spent delivering other services. And this is caused by the request of one person.

Unfortunately the simple quote does not adequately convey this to someone who does not work in government. This lack of understanding of the scope is shown in the response by BobJudd/Chatham who indicates no one cares about the time involved. Then BobJudd/Chatham goes on to express a typical misconception the public has about government – that we are spending our whole day trying to hide information.

Get Involved!
These types of exchanges fit right into the reality show mentality and do nothing to ensure successful delivery of a truly open government. Over the next month or so, I believe agencies will come together in an effort to develop an open government plan that can be implemented at the local level. If you have thoughts on this issue, feel free to share in the comment section below. And I encourage anyone interested in working towards this effort to stay tuned as we try to turn this reality show into a documentary.

(The post above reflects my own personal thoughts and opinions and are not necessarily those of my employer.)